The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-03-15


presented by the Attorney General and found
by the Court.
We are now met with the inquiry whether
any other conduct OF publication, than that
defined and specified in the section of the
Penal Code above referred to, can be held to
be contempt.
Section 1895 of the Civil Code (which is
incorporated in the latter part Of the section
of the Penal Code above referred to- reads,
Every judicial tribunal acting as such,
and every magistrate acting by authority Of
law III judicial capacity may summar1ly
punish persons guilty of contempt as fol-
| lows:
| To punish summarily means that the Court
or magistrate may entertain the case and
proceed to final judgment therein, without
submitting it to jury upon an indictment
duly presented and found.
Such power, as laid down by all iurists
and text writers, is inherent as Courts of re-
cord even when not expressly given by
statute.
Contempts which may thus be summarily
punished are not enumerated and defined BY
the section now under consideration (Civil
Code 1096).
That they are not limited to those emu
merated by Sec. Is of the Penal Code above
referred to, is made clear by Sec. 1897 of the
Civil Code, which reads "Pefsons punished
according to the provisions of this Chapter
lCudp. II ClVu OOQe OI OOuLeIuplbls bud4l
also be, liable to Indictment for the same
misconduct, if it be an indiotable offense;
but the Court before which conviction is
had on the indictment, in passing sentences
shall take into consideration the punishment
before inflicted
We have here what is an apparent anomaly
in penal jurisprudence, that q person Is LA
BILE to be punished twice for the same offence.
But this law plainly has in view two classes
of contempts. one that may be punished up
on conviction after trial by jury upon an
indictment therefor, which is also punishable
summarily and another class punishable
summarily but not indictsble, because not
enumerated in Sec. Is Chap. % of the Penal
Code, as an indictable offense.
We are reinforced in the position that the
Court is at liberty to construe as contempts
of Court, other misconducts of that charac-
ter which are not enumerated In the Section
of the Penal Code referred to, by the word
ing of Sec. 1888 of the Civil Code, wherein
the power is given to the Court where the
contempt consists in the omission or refusal
to perform an act which is yet in the power
of the party to perform, to imprison the
party until he has performed it. Such a con-
tempt is not an indictable offense, it is not
specified in the Penal Code and it is, never
theless, punishable summarily as above in
dicated.
Having come to the conclusion that an act
of misconduct may be found by the Court to
be q contempt though it is not one of those
enumerated in the section of the Penal Code
under discussion, our next inquiry to meet is
whether the article in question is of such a
nature.
The suit of Ackerman VS.. Congdon was to
recover freight on an invoice of hogs. The
defense is stated to be that 4 number of hogs
died on the passage for which the shipper
seeks to hold the plaintiff responsible. The
statement is made in the article in the GA
zETTE that $50 far as the ship is concerned
no accident occurred to cause death, and the
only excuse was that the hogs were over-fed
and died from suffOcatiOn." This is put for
ward by petitioners counsel as 'publica-
ton tending to influence the result of a
pending suit and therefore a contempt Of
Court.
In.Dap rs. EIey Law r. ESQ. Cases 40, a
suit was pending to restrain the infringe
ment of patent in which one of the issues
was the novelty of the plaintiffs invention.
The defendants solicitor wrote a letter un-
der an assumed name which was published,
stating facts which would tend to disproYe
the novelty of the invention; held that the
solicitor had been guilty of contempt of
Court in writing for publication letters tend
ing to influence the result of the suit. Lord
Romilly NJ B., says: "fhe principle is quite
established in all these cases that no person
must do anything to pervert the sources Of
justice or the proper flow of justice; in fact
they ought not to make any publications, or
write anything, which would induce the
Court, or which might possibly induce the
Court or the iury-the tribunal that will
have to try the matter-t to come to any con
clusion other than that which is to be de-
rived from the evidence in the cause between
the parties; and certainly they ought not to
the minds of the public before
hand by mentioning circumstances relating
to the case"
In the case of the Printer of the Champion
(Roach vs. HALL Atk. 469, Lord Hardwicke
laid down the rule which has ever since been
acted upon in England, Nothing is more in
cumbent upon courts Of justice than to pre-
serve their proceedings from being misre-
presented, nor is there Anything of more
pernicious consequence than to prejudice the
minds of the public against persons con-
cerned as parties in causes before the cause
is finally heard. 1t has always been my
opinion, as well as the opinion of those who
have sat here before me, that such a proceed
ing ought to be discountenanced."
In re Cheltenham and Swansea Railway
and Carriage Co., L. X. 8 Egg. Cases 583. the
V. c., Malins, held that it was contempt of
Court merely to publish ia eEteHsO a petition
for the winding up of q company which con-
tanned certain grave and serious charges with
reference to the conduct of the directors.
Sir r. Malins says, "the broad question is
whether 1t Is allowable for the publishers of
4 newspaper to print proceedings pending in
The Court before such proceedings have come
On to be heard. The principle is equally an
Dlicable to any bill or answer or petition
which may be filed in this Court; the state
nents therein contained being necessarily
a Parte, and unaecOmpanied by any eVi-
ienoe or pleadings on the other side
t appears to me that whenever a newspaper,
either or its own motion or at the instiqatfon
If others, publishes the proceedings in a
,ause before the hearing, it tends to preiu-
lice the minds Of the public. The present
;ase falls within the rule and / must regard
he publication of this petition as a contempt
If Court"
In the case against OnslOw & Whalley, M.
P.'s, for contempt of Court for making
Jpeeches at public meetings alleging that
(the Tichborne claimant was not
yuilty, and that there is a conspiracy against
him and that be cannot have fair trial
he case being pending and the day fixed for
@. J. said: "This Court has
always held that comment made on a
criminal trial or other proceedings, when
pending, is an offence against the admins